On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0184-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 1, 2010

Before Judges Lihotz and Ashrafi.

Plaintiff Annmarie Pakulski Suliga, individually and on behalf of decedent's estate, appeals from the court's denial of her motion for a new trial following a jury verdict awarding damages of $621,410, along with pre-judgment interest, for the wrongful death of her husband, Joseph S. Suliga (decedent). Suliga argues the trial judge erred in denying her motion as the wrongful death award was grossly inadequate, and the jury disregarded the court's instructions concerning the elements of damages. She asserts the verdict is significantly less than the proven economic loss as it recognized a future work life expectancy of only 6.4 years and ignored claims for lost pension benefits or household services.

Defendant Nicholas J. Sorrentino filed a cross-appeal from the denial of his motion for entry of judgment notwithstanding the verdict (J.N.O.V.) or, in the alternative, for a new trial. Sorrentino seeks a judgment against defendant Omar S. Beeks, who the jury found not liable in decedent's death, and challenges the calculation of pre-judgment interest.

We have considered the arguments presented on appeal in light of the record and applicable law. We affirm the damage award to Suliga, including the court's calculation of prejudgment interest. However, we reverse and remand for a new trial regarding Beeks's liability.

I.

Sorrentino owns a corrugated packaging business on East Linden Avenue in Linden. He sought to develop a business relationship with decedent, who at the time was Finance Director for the City of Linden and custodian of school funds for the Linden Board of Education. On February 18, 2005, Joan Hannon, who worked for Sorrentino, accompanied decedent to Cheeques, a "go-go bar." Cheeques is located on the eastbound side of East Linden Avenue, a relatively straight stretch of road which has a posted twenty-five mile-per-hour speed limit. The area is "fairly well-lit," so someone traveling westbound at night has visibility of the entirety of the roadway for approximately 200 feet.

Decedent and Hannon had only been in the bar for a few minutes when Sorrentino arrived at approximately 10:00 p.m. Rather than utilizing a designated parking space, Sorrentino pulled his Infinity G-35 coupe almost perpendicular to the main entrance. Approximately six feet from the building's entrance, two concrete poles were fixed to prevent a car from blocking the door. Sorrentino's Infinity was parked on the other side of those poles, causing six feet of his car to sit in the roadway. Sorrentino exited his car and ran inside Cheeques to retrieve Hannon and decedent.

Cheeques' General Manager, Joseph Altomare, noticed Sorrentino's car via the establishment's security camera. Altomare also observed several cars traveling eastbound on East Linden Avenue swerving into the westbound lane to avoid hitting the vehicle. Sorrentino returned to the driver's seat and Altomare observed the Infinity's rear lights come on as if Sorrentino was about to back-up. Decedent entered Sorrentino's vehicle, taking a seat in the rear driver's side. Hannon briefly remained standing, as she was about to enter the Infinity.

Beeks was driving a friend's white Chrysler Sebring westbound on East Linden Avenue. He estimated his speed at approximately twenty-five to thirty miles per hour. Suddenly, he noticed lights on his right-hand side "coming close to him," and believed a vehicle was exiting from a gated area parking lot, near the roadway. He never saw a car, only headlights. Reacting, Beeks swerved his car to the left, crossed the center line of East Linden Avenue and plowed head-on into the rear driver's-side panel of the Infinity. Beeks's car came to a stop inside the eastbound lane after impact.

From his office, Altomare watched the collision on a security video monitor, although the impact was not actually recorded on the surveillance videotape. He observed Beeks's car headed westbound, but traveling in the eastbound lane approximately "three car widths," before it collided with Sorrentino's parked Infinity.

Beeks gave two statements to the police immediately after the accident consistent with the above facts. Four days later, he viewed the accident scene and realized there were no parking lots directly across from Cheeques. During his deposition, he asserted that after he saw the sudden headlights, he swerved "a little to the left," then completely returned to the westbound lane prior to the impact. At trial, Beeks admitted Sorrentino's lights were on, although he never saw the Infinity before the collision and did not apply his brakes. At trial, he asserted, for the first time, the Infinity had backed into his car.

As a result of the accident, Sorrentino suffered bruised ribs and required several stitches for lacerations. Hannon was trapped, "lying underneath . . . a F250 Ford pickup truck" and "bleeding throughout her head and arm area" as she broke her right tibia, fibula and ankle, two vertebrae in her lower back, one rib, and her pelvis.*fn1 Police found decedent "unresponsive" with a "wound to the left side of his head." He died before medics arrived.

The police safeguarded the security video and interviewed Beeks, who looked "confused" and admitted he struck the Infinity, which he said "came out of nowhere." Officers from the Accident Investigation Unit arrived and took over the investigation.*fn2

Investigator Andrew Haszko was given initial responsibility for examining and reconstructing the accident.*fn3 Haszko's measurements taken at the scene revealed each lane of East Linden Avenue was fifteen feet wide, and the distance from the poles guarding the entrance to Cheeques to the eastbound lane of the roadway was nine feet. Further research revealed the length of the Infinity was 15.15 feet. Thus, when Sorrentino parked the car as he did, 6.15 feet of the vehicle jutted into the roadway.

Haszko also testified that the trail of radiator fluid left by Beeks's car, and the position of the vehicles after the accident, showed Beeks had been driving "fully in the wrong lane . . . in the middle of the lane and traveling for some distance in a straight line, as opposed to having swerved . . . from the [correct] lane" to the left. Haszko also found damage to the front and rear sides of both vehicles, suggesting that "[a]fter collision when they were spinning, [] the Beeks vehicle continued forward [and] the Infinity was being turned around.

[A]s it was being turned around, it slapped into Beeks' vehicle . . . . The two vehicles became parallel with each other, but facing in opposite directions."

At trial, Suliga testified regarding her husband's financial circumstances and their life together. At the time of his death, decedent served as Finance Director for the City of Linden and custodian of funds for the Linden Board of Education, earning approximately $135,000 to $140,000 per year. The Suligas had no children, and owned homes in Linden and Barnegat.

Suliga's expert, Dr. Matityahu Marcus, testified to quantify the economic loss suffered as a result of decedent's death. Utilizing decedent's pay stubs, his public retirement plan documentation, and noting decedent's educational history, age, and health, Dr. Marcus concluded net annual income for the benefit of Suliga was $62,141.*fn4 As 3.6 years had passed since decedent's death, the loss to date was $223,780. Dr. Marcus also opined on Suliga's future loss, estimating decedent would have worked until ...

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